IN THE ISLAMABAD HIGH COURT, ISLAMABAD
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood son of Khawaja Abhdul Rehman, resident of House No.99-O/1, Mohallah Talli Mohri Chowk, Nai Abadi, Rawalpindi Cantt.
…Appellant
Versus
Khawaja Abdul Jabbar son of Khawaja Abdul Rehman, resident of House No.136/33-B-1, Gali No.1, Mohallah Talli Vohri Chowk, Lalazar, Rawalpindi.
Federal Government Employees Housing Foundation, 10 Mauve Area, Sector G-10/4, Islamabad, through its Director General.
Capital Development Authority, Islamabad through its Chairman, Islamabad.
…Respondents
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
CLAIM IN APPEAL: To set-aside the impugned judgment/ decree dated 04.05.2017 by accepting the instant regular first appeal and to dismiss the suit of the respondent No.1.
Respectfully Sheweth:
That the brief facts of the case are that the respondent No.1 filed a suit for specific performance and permanent injunction against the appellant, contended therein that the appellant/defendant No.1 is the owner of Plot No.1481, measuring 25x50, situated in G-11/2, Islamabad. The respondents/defendants No.2 & 3 are impleaded as necessary party being custodian of record of the suit plot. The appellant/defendant No.1 is the real elder brother of the respondent No.1/plaintiff who entered into an agreement to sell with the plaintiff regarding the suit plot against the total sale consideration of Rs.60,00,000/-. The respondent No.1/plaintiff paid an amount of Rs.50,000/- in cash to the appellant/defendant No.1 and got prepared a pay order No.3303577 of ABL, Tulsa Road Branch, Rawalpindi of Rs.10,00,000/- dated 17.01.2013 in the name of the appellant/defendant No.1, who after obtaining the same got executed sale agreement/iqrarnama dated 22.01.2013 and acknowledged the receipt of cash amount and pay order. That formal terms and conditions were settled between the respondent No.1/plaintiff and the appellant/defendant No.1 as per iqrarnama dated 22.01.2013 and it was mutually decided that the respondent No.1/plaintiff will pay the balance sale consideration i.e. Rs.49,50,000/- at the time of transfer of the suit plot in favour of the respondent No.1/plaintiff or his nominee(s) before the respondent No.3 Contents of the iqrarnama dated 22.01.2013 may kindly be read as integral part of this plaint. That formal sale agreement/iqrar nama dated 22.01.2013 may kindly be read as integral of this plaint. That formal sale agreement/iqrarnama dated 22.01.2013 was executed in the presence of marginal witnesses. The original file of the suit plot was handed over by the appellant/respondent No.1 to the respondent No.1/plaintiff which is still in the custody of the respondent No.1/plaintiff. That the respondent No.1/plaintiff deposited Rs.2750/- and Rs.10,000/- as outstanding/dues of the suit plot with the respondent No.2 against the suit plot. The appellant/defendant No.1 submitted an application with the appellant/defendant No.1 for the issuance of NOC so that the suit plot could be transferred. The respondent No.1/plaintiff requested the appellant/defendant No.1 to complete the transfer process of the suit plot as respondent No.1/plaintiff is ready to pay the remaining sale consideration, but the appellant/defendant No.1 firstly kept the matter on lingering pretext and later on almost refused to do so, because the price of the suit plot has been increased and that makes the appellant/defendant No.1 greedy. That now it came into the knowledge of the respondent No.1/plaintiff that the appellant/defendant No.1 is trying to further sell the suit plot to anybody else and if the appellant/defendant No.1 is succeeded in his illegal designs, then the valuable rights of the respondent No.1/plaintiff would be jeopardized. the respondent No.1/plaintiff requested the appellant/defendant No.1 not to act illegally but appellant/defendant No.1 is not acceding upon the request of the respondent No.1/plaintiff, whereas plaintiff is ready to pay the remaining sale consideration of the suit plot.
That after filing of the suit, the appellant/defendant No.1 appeared before the Court and submitted his written statement, wherein the defendant/appellant denied the contention of the respondent No.1/plaintiff and further contended that the appellant/defendant No.1 never entered into agreement to sell with the respondent No.1/plaintiff, the brief facts of the case are that the respondent No.1/plaintiff is younger brother of the appellant/defendant No.1, the appellant is a blind since 2006, and the respondent No.1/plaintiff is fully aware about this fact, the respondent No.1/plaintiff intended to got for Hajj alongwith his daughter, and for this purpose the appellant/defendant asked the respondent No.1/plaintiff to lend an amount of Rs.10,00,000/- to him, resultantly the respondent No.1/plaintiff agreed for the same, and paid an amount of Rs.10,00,000/- to him through pay order mentioned in the plaint, but thereafter the respondent No.1/plaintiff approached the appellant/defendant and said to him that he is going to prepared some documents necessary for traveling to Hajj, and fraudulently with cheating and with malafide intention got the signature of the appellant/defendant No.1 on different papers, and assured the appellant/defendant No.1 that their travel documents would be ready within few weeks. But surprisingly the appellant/defendant No.1 received a notice from the Honourable Court of Civil Judge, Islamabad, and came to know that the respondent No.1/plaintiff has filed the instant suit, just to grab the valuable suit plot of the appellant/defendant No.1. The appellant/defendant has neither sold out the said plot to the respondent No.1/plaintiff nor received any earnest money from the respondent No.1/plaintiff.
That after filing of the written statement by the defendants, the Honourable trial Court framed the following issues;
ISSUES
Whether the plaintiffs are entitled for a decree for specific performance of agreement to sell dated 21.01.2013 and permanent injunction, as prayed for? OPP
Whether the suit of the plaintiffs is not maintainable under the Law? OPD
Whether the plaintiff has no cause of action or locus standi to file the instant suit? OPD
Relief.
That it is further necessary to mention here that another suit for specific performance and permanent injunction in respect of the same plot/suit plot titled as “Ayub Naseer Vs Khawaja Sultan Mehmood and others” was previously instituted and was pending and subsequently both the suits were consolidated and the following consolidated Issues were framed;
Whether the plaintiff namely Mr. Ayub Naseer is entitled to the decree for declaration and specific performance, permanent and mandatory injunction as prayed for? OPP (Ayub Naseer)
Whether the plaintiff namely Ayub Naseer failed to make the remaining sale consideration within stipulated time period mentioned in the agreement to sell? OPD (Khawaja Sultan)
Whether the plaintiff namely Ayub Naseer has approached the court with un-cleaned hands while concealing the material fact from this court, hence his suit is liable to be dismissed along with special cost? OPD (Khawaja Sultan)
Whether the suit of plaintiff namely Ayub Naseer is neither maintainable nor proceedable , hence the same is liable to be dismissed alongwith special cost? OPD (Khawaja Sultan, CDA)
Whether Khawaja Abdul Jabbar entered into agreement regarding the suit property with Khawaja Sultan without having knowledge of earlier agreement to sell dated 19.04.2004? OPD (Khawaja Abdul Jabbar)
Whether Khawaja Abdul Jabbar is entitled to the decree for specific performance of agreement dated 22.01.2013 and permanent injunction as prayed for? OPD (Khawaja Abdul Jabbar)
Whether Khawaja Abdul Jabbar prepared a forged agreement regarding suit property while taking advantage of blindness of Khawaja Sultan? OPD (Khawaja Sultan)
Whether Khawaja Abdul Jabbar approached the court with un-cleaned hands while concealing the material facts from this Court, hence this suit is liable to be dismissed alongwith special cost? OPD (Khawaja Sultan)
Whether the suit of Khawaja Abdul Jabbar is neither maintainable nor proceedable in its present form? OPD (Khawaja Sultan, FGEFH, CDA)
What should the relief be?
That after framing of the issues, all the parties produced their evidence and suit of the respondent No.1 titled as “Khawaja Abdul Jabbar Vs Khawaja Sultan Mehmood and others” was decreed and other suit titled as “Ayub Naseer Vs Khawaja Sultan and others” has been dismissed.
That the impugned judgment and decree dated 04.05.2017 in suit titled “Khawaja Abdul Jabbar Vs Khawaja Sultan Mehmood” is liable to be set-aside on the following grounds, amongst others:
GROUNDS :-
That the impugned judgment/decree dated 04.05.2017 is against the law and facts of the case, hence it is not sustainable in the eyes of law and further the leaned trial court has not considered the evidence produced by the appellant.
That impugned judgment/decree is based on surmises and conjunctures.
That the Honourable lower Court didn’t apply its judicial mind while passing the impugned judgment/decree.
That the learned trial Court failed to follow the law and dictums laid down by the superior courts in this regard.
That the learned trial Court didn’t give any weight-age to the evidence of the appellant and also did not give weight-age to the arguments advanced on behalf of the appellant.
That the respondent No.1/plaintiff has/had not a good prima facie case, however the learned trial Court didn’t appreciate this fact.
That the impugned judgment/decree has been passed in fanciful manner and on the basis of surmises and conjectures.
That the learned trial Court has passed the impugned judgment/decree in hurry and hasty manners without considering the available evidence of the appellant.
That the impugned judgment/decree has resulted in great miscarriage of justice and appellant shall suffer an irreparable loss, if the same is not set-aside.
That the impugned judgment/decree is against the law and facts.
That more grounds and law points will be adduced at the time of hearing if so required.
PRAYER :-
In the circumstances, it is, therefore, most humbly prayed that the appeal in hand may kindly be accepted and the impugned judgment/decree dated 04.05.2017 may kindly be set-aside and the suit of the respondent No.1/plaintiff may be dismissed with costs in the interest of justice.
Any other relief, which this Honourable Court may deem fit and proper, may also be granted.
Appellant
Through
Mian Tahir Iqbal
Advocate Supreme Court
Certificate :
This is first civil appeal being moved before this Honourable Court.
No other appeal is filed or pending before this Honourable Court upto the Supreme Court of Pakistan.
Counsel
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
AFFIDAVIT
I, Khawaja Sultan Mehmood son of Khawaja Abhdul Rehman, resident of House No.99-O/1, Mohallah Talli Mohri Chowk, Nai Abadi, Rawalpindi Cantt., do hereby solemnly affirm and declare on oath as under:-
That the contents of the above captioned RFA are true and correct to the best of my knowledge and believe and that nothing had been concealed therein.
DEPONENT
CERTIFICATE
Certified that the contents of this affidavit are true and correct to the best of my knowledge and believe and nothing has been concealed therein.
DEPONENT
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No.__________/2017
In
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR SUSPENSION OF OPERATION OF IMPUGNED JUDGMENT/DECREE DATED 04.05.2017
Respectfully Sheweth:
-
That the applicant has filed the above captioned RFA in this Honourable Court today and the contents of the same may kindly be read as an integral part of this application.
-
That the applicant has a good prima facie case and hopes every success in the same.
-
That the balance of convenience also lies in favour of the applicant.
-
That in case the operation of the impugned judgment/decree dated 04.05.2017 is not suspended, the applicant will suffer an irreparable loss.
In the circumstances, it is, therefore, respectfully prayed that the application may kindly be accepted and the operation of impugned judgment/decree dated 04.05.2017 be suspended till final decision of the instant RFA in the interest of justice.
Applicant
Through
____________
Advocate Supreme Court
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No.__________/2017
In
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR SUSPENSION OF OPERATION OF IMPUGNED JUDGMENT/DECREE DATED 04.05.2017
AFFIDAVIT
I, Khawaja Sultan Mehmood son of Khawaja Abhdul Rehman, resident of House No.99-O/1, Mohallah Talli Mohri Chowk, Nai Abadi, Rawalpindi Cantt., do hereby solemnly affirm and declare on oath as under:-
That the contents of the above captioned application are true and correct to the best of my knowledge and believe and that nothing had been concealed therein.
DEPONENT
CERTIFICATE
Certified that the contents of this affidavit are true and correct to the best of my knowledge and believe and nothing has been concealed therein.
DEPONENT
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No.__________/2017
In
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPIES
Respectfully Sheweth:
That the applicant has filed the above mentioned RFA in this Honourable Court, the contents thereto may kindly be read as an integral part of this application.
That the applicant has filed certain documents annexed with the RFA and they are unable to provide certified copies thereto, hence seeks exemption from filing the certified copies of the same.
That the certified copies of the documents will be submitted as soon as these are made available.
In these circumstances, it is, therefore, most humbly prayed that the applicant may be exempted from filing the certified copies of the documents appended with the RFA in the interest of justice.
Applicant
Through
Counsel
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No.__________/2017
In
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPIES
AFFIDAVIT
I, Khawaja Sultan Mehmood son of Khawaja Abhdul Rehman, resident of House No.99-O/1, Mohallah Talli Mohri Chowk, Nai Abadi, Rawalpindi Cantt., do hereby solemnly affirm and declare on oath as under:-
That the contents of the above captioned application are true and correct to the best of my knowledge and believe and that nothing had been concealed therein.
DEPONENT
CERTIFICATE
Certified that the contents of this affidavit are true and correct to the best of my knowledge and believe and nothing has been concealed therein.
DEPONENT
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
Regular First Appeal No.__________/2017
Khawaja Sultan Mehmood
Versus
Khawaja Abdul Jabbar and others
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 04.05.2017 PASSED BY MISS AYESHA SHABBIR, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
INDEX
| ## S.No | ## Description of documents | ## Annex | ## Page No. |
|---|---|---|---|
| Regular First Appeal alongwith affidavit | |||
| Impugned judgment & decree dated 04.05.2017 | A | ||
| Certified copy of consolidated issues | B | ||
| Copy of plaints | C | ||
| Copy of written statements | D | ||
| Copy of evidence of the parties | E | ||
| Suspension application alongwith affidavit | |||
| Exemption application alongwith affidavit | |||
| Wakalatnama |
Appellant
Through
___________
Advocate Supreme Court
Any other relief, which this Honourable Court may deem fit and proper, may also be granted.
Appellants
Through
_____________
Advocate Supreme Court
Certificate :
This is RFA being moved before this Honourable Court.
No other RFA is filed or pending before this Honourable Court upto the Supreme Court of Pakistan.
Counsel
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No._________/2016
In
Regular First Appeal No.__________/2016
Noor Abdullah
Versus
Muhammad Zarif Ahmad and another
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 06.11.2015 PASSED BY MIAN MUHAMMAD AZHAR NADEEM, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR SUSPENSION OF OPERATION OF IMPUGNED JUDGMENT/DECREE DATED 06.11.2015
Respectfully Sheweth:
-
That the applicant has filed the above captioned RFA in this Honourable Court today and the contents of the same may kindly be read as an integral part of this application.
-
That the applicant has a good prima facie case and hopes every success in the same.
-
That the balance of convenience also lies in favour of the applicant.
-
That in case the operation of the impugned judgment/decree dated 06.11.2015 is not suspended, the applicant will suffer an irreparable loss.
In the circumstances, it is, therefore, respectfully prayed that the application may kindly be accepted and the operation of impugned judgment/decree dated 06.11.2015 be suspended till final decision of the instant revision petition in the interest of justice.
Applicants
Through
Mian Tahir Iqbal
Advocate Supreme Court
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No._________/2016
In
Regular First Appeal No.__________/2016
Noor Abdullah
Versus
Muhammad Zarif Ahmad and another
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 06.11.2015 PASSED BY MIAN MUHAMMAD AZHAR NADEEM, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR SUSPENSION OF OPERATION OF IMPUGNED JUDGMENT/DECREE DATED 06.11.2015
AFFIDAVIT
I, Noor Abdullah son of Ghulam Hussain, resident of House No.1581, Street No.39, Sector I-10/2, Islamabad, do hereby solemnly affirm and declare on oath as under:-
That the contents of the above captioned application are true and correct to the best of my knowledge and believe and that nothing had been concealed therein.
DEPONENT
CERTIFICATE
Certified that the contents of this affidavit are true and correct to the best of my knowledge and believe and nothing has been concealed therein.
DEPONENT
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
C.M. No._________/2016
In
Regular First Appeal No.__________/2016
Noor Abdullah
Versus
Muhammad Zarif Ahmad and another
REGULAR FIRST APPEAL AGAINST THE IMPUGNED JUDGMENT/DECREE DATED 06.11.2015 PASSED BY MIAN MUHAMMAD AZHAR NADEEM, LEARNED CIVIL JUDGE, (WEST) ISLAMABAD, WHEREBY THE LEARNED CIVIL JUDGE DECREED THE SUIT OF THE RESPONDENT NO.1
APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPIES
Respectfully Sheweth:
That the applicant has filed the above mentioned RFA in this Honourable Court, the contents thereto may kindly be read as an integral part of this application.
That the applicant has filed certain documents annexed with the RFA and they are unable to provide certified copies thereto, hence seeks exemption from filing the certified copies of the same.
That the certified copies of the documents will be submitted as soon as these are made available.
In these circumstances, it is, therefore, most humbly prayed that the applicant may be exempted from filing the certified copies of the documents appended with the appeal in the interest of justice.
Applicants
Through
Counsel